The Discovery Process
Most divorce cases present issues of support, division of assets and liabilities, and parenting issues. A judge cannot decide nor can the parties settle these issues without accurate information. Often, one party has less knowledge than the other about such matters. To ensure during divorce that both parties have equal access to necessary information, the law provides various means of obtaining information through the “discovery” process.
Discovery can take any, or all, of the following forms:
Financial Affidavit: This type of discovery is mandatory upon the filing of a divorce case. Once the petition for dissolution is filed, both parties are required to submit their completed financial affidavit, which provides a useful summary of income, expenses, assets and liabilities. This affidavit is available in a fillable form located online here.
In most cases, more information will be required than what can be gleaned from the financial affidavits. Additional discovery, all of which are governed by Illinois Supreme Court Rules that every attorney must follow, may be utilized. The types of discovery include:
Interrogatories: These are written questions directed to the opposing party seeking information about facts relevant to the case. They are answered in writing under oath. The Illinois Supreme Court has provided “standard” interrogatories in divorce cases. There is a limit on the number of questions which can be asked.
Request for Production of Documents: Each party may, by written request, require the other to produce documents in that party’s possession or control that are relevant to the case. This method of collecting information is common to most divorce cases. The most commonly requested documents are for three to five years of bank statements; credit card statements; financial statements; business records; pension statements; and documents showing other assets accumulated. These records are reviewed to see the historical pattern of spending and to assess if any dissipation has occurred.
Deposition: Depositions are an important discovery tool. A deposition is where the attorneys asks questions of an individual to obtain information under oath while the answers are being recorded by a court reporter. The parties, business colleagues and/or paramours may be deposed as they are the ones with knowledge of relevant facts. A deposition transcript may be ordered where each question and answer is typed up by a court reporter. Depositions do not occur in court but are subject to some of the rules of evidence that operate in court. If the parties are represented by lawyers (as they almost always are), the lawyers will be present and conduct the deposition. The team at Feinberg Sharma, P.C. prepares clients in advance for depositions. We will want your assistance when we prepare to depose your spouse and others.
Subpoena: A party may obtain documents from third parties by service of a subpoena, which is a court command to provide certain documents at a stated place and time. A subpoena may require the production of documents, an in-person deposition, or both.
Not all of these discovery methods are necessary for every case. The methods employed are oftentimes a matter of judgment from the attorney. The use of these tools turn on the individual facts and circumstances of each case. The attorneys at Feinberg Sharma, P.C. have the experience and knowledge to help skillfully navigate you through the discovery process and beyond to a successful divorce conclusion.
© 2019 Shannon M. Luschen for Feinberg Sharma, P.C.